Citation NR: 9611723
Decision Date: 04/30/96 Archive Date: 05/09/96
DOCKET NO. 94-03 003 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Associate Counsel
REMAND
The veteran had active duty from August 1968 to March 1971.
The veteran claims service connection for PTSD based on an
allegation that, during his tour in Vietnam, he shelled a
group of Vietnamese children. This stressor was conveyed to
a private counselor, social worker, and in March 1993, the
counselor reported that the veteran felt that he was
personally and completely responsible for the shelling act
and for the resulting deaths and injuries that occurred. The
private counselor stated that the veteran’s extreme guilt and
his shame about the traumatic incident had a significant
direct impact on his life. The private counselor also stated
that he observed a strong startle response in the veteran,
that the veteran had a long-term problem with outbursts of
anger since his return from Vietnam, as evidenced by assault
charges that he received, and that he had significant
difficulty in falling asleep. It was noted that the veteran
had symptoms of avoidance or numbing, that he had limited
contact with his children, that he had difficulty in loving
relationships, that the veteran believed that he was a
failure in life and that he would die young. The private
counselor opined that he was aware that the differential
diagnosis of PTSD was a difficult one, but that, in the
veteran’s case, the clear symptomatology made the diagnosis
relatively unambiguous.
The veteran’s service records reflect that he served in the
Army and was awarded the National Defense Service Medal, the
Vietnam Service Medal, the Vietnam Campaign Medal and a an
Army Commendation Medal, for meritorious achievement in
connection with military operations against a hostile force.
His DD Form 214 indicates that he had 1 year and 10 months of
foreign and/or sea service and that he was a mechanic. Other
military records, including a DA Form 20, were associated
with the record.
Pertinent treatment records reveal the following. In August
1984, the veteran was hospitalized at a Department of
Veterans Affairs (VA) facility. The diagnosis at that time
was Axis I, episodic alcohol dependence, and dysthymic
disorder. Continued hospitalization from September 1984 to
January 1985 revealed diagnoses of alcohol dependence,
dysthymic disorder, and chronic headaches. A January 1985
neuropsychiatric VA examination revealed a diagnosis of
habitual excessive use of alcohol and use of narcotic drugs,
said to be controlled, and that no other specific psychiatric
disorder was found. It was noted that a neurological
examination was within normal limits, and that the veteran
had a history of frontal type headaches. From October 1987
to November 1987, he was hospitalized at a VA facility and
the diagnoses were Axis I, PTSD, dysthymic disorder, and
history of multiple substance abuse, and Axis II mixed
personality disorder with paranoid and antisocial features.
He was hospitalized again at VA from February 1988 to March
1988. At that time the diagnoses included episodic alcohol
and marijuana abuse, and to rule out PTSD. The hospital
discharge summary showed a diagnosis of possible PTSD, with a
secondary diagnosis of marked antisocial personality traits.
A VA hospital report, showing hospitalization from July 1989
to August 1989, revealed a diagnosis of Axis I, “X” impulse
control disorder. From October 1989 to January 1990, the
veteran was hospitalized at a VA facility and the diagnosis
was Axis II, “X” passive/aggressive personality disorder. At
a VA examination in January 1993, the diagnosis was Axis I,
depression, not otherwise specified, Axis II, drug dependent
and sociopathic personality trait, and Axis IV, chronic
opiate and alcohol withdrawal.
Service connection for PTSD requires medical evidence
establishing a clear diagnosis of the disorder, credible
supporting evidence that the claimed in-service stressors
actually occurred, and a link, established by medical
evidence, between current symptomatology and the claimed in-
service stressors. 38 C.F.R. § 3.304(f) (1995). The Board
of Veterans’ Appeals (Board) observes that the stressor
information which the veteran has supplied to the regional
office (RO) has not been referred through the proper channels
in an attempt to verify the claimed stressor. Also, the
Board notes that the record indicates that, in March 1989,
the Social Security Administration (or SSA) requested
information from the VA. If a SSA claim was filed by the
veteran, no corresponding records are associated with the
claims file, and such records would be pertinent to the
veteran’s claim. In his substantive appeal, dated in May
1993, the veteran contends that the VA examiner, in 1993, did
not ask about or give the veteran the opportunity to relate
his stressor. In an April 1996 statement, the representative
argues that the veteran’s various diagnoses have not been
reconciled.
Therefore, to ensure that the VA has met its duty to assist
the veteran in developing the facts pertinent to his claim,
and to ensure full compliance with due process requirements,
the case is REMANDED to the RO for the following development:
1. The RO should obtain the names and
addresses of all medical care providers
who have treated or evaluated the veteran
for a psychiatric disorder since January
1993, the last evaluation date of record.
This includes any pertinent VA, Vet
Center, or private records that are
pertinent to the veteran’s claim. After
securing the necessary release(s), the RO
should attempt to obtain these records,
without duplication of medical records
that are already associated with the
claims file.
2. The RO should obtain a complete
statement of all of the stressors that
veteran alleges occurred in service,
including the one stressor conveyed by
the veteran to his private social worker,
as stated in a letter dated in March
1993.
3. After the above development has been
completed to the extent possible, the RO
should forward any information provided
by the veteran, together with copies of
statements previously submitted by him,
the veteran's service personnel records,
a copy of his record of service (DD Form
214), and a copy of this remand to the
United States Army and Joint Services
Environmental Support Group (ESG), 7798
Cissna Road, Springfield, Virginia,
22150, for stressor verification.
4. Following receipt of the ESG’s report
and information from any other sources
contacted, and the completion of any
additional development warranted or
suggested by those offices, see e.g.,
Zarycki v. Brown, 6 Vet.App. 91, 99
(1993), the RO should report, in detail,
on the nature of any verified combat
action, or in-service stressful event; if
no combat stressor involving the veteran
has been verified, the RO should
specifically so state.
5. Once the above-mentioned development
has been accomplished, and only if the
veteran is found to have a verified
stressor, then the veteran should be
afforded a comprehensive psychiatric
examination by a VA psychiatrist who is
familiar with PTSD. The veteran's claims
file, together with a separate copy of
this remand, must be provided to and
reviewed by the examiner prior to the
examination. The examiner should note
and distinguish the symptomatology of any
and all psychiatric disorders found to be
present. All indicated studies,
including PTSD sub-scales, are to be
performed. The examiner must express an
opinion whether any psychiatric
disability is linked to any specific
incident or incidents in service. If
symptoms of differing psychiatric
disorders cannot be distinguished, the
examiner should so state and explain why.
In determining whether or not the veteran
has PTSD due to an in-service stressor,
the examiner may rely only on the
verified history, detailed in the reports
provided by the ESG or other official
source and/or the RO. If the examiners
believe that PTSD is the appropriate
diagnosis, they must specifically
identify which stressor(s) detailed in
the official verifying documents and/or
the RO's report are responsible for that
conclusion. All opinions expressed must
be accompanied by complete rationale.
6. Following completion of the
foregoing, the RO must review the claims
file to ensure that all of the above-
mentioned development has been completed
in full. In particular, the RO should
review the VA psychiatric examination
report to verify that any diagnosis of
PTSD was based on the verified history
provided by the Army and/or RO, and that
the opinion presented satisfies the
requirements stated by the Board above.
If in diagnosing PTSD the examiners
relied upon a stressor history which was
not verified or the report is incomplete,
the report must be returned as inadequate
for rating purposes. The attention of
the RO is directed to the holding of the
Court that a diagnosis of PTSD related to
service, based on an examination which
relied upon an unverified history, is
inadequate. West v. Brown, 7 Vet.App.
70, 77 (1994).
7. The RO should obtain from the Social
Security Administration the records
pertinent to any claim for Social
Security disability benefits made by the
veteran, as well as the medical records
relied upon concerning that claim.
8. After the development requested above
has been completed, the RO should re-
adjudicate the claim. If the benefit
sought on appeal remains denied, the
veteran and his representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action until
otherwise notified.
V. L. JORDAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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